So-called slip-and-fall cases, a species of “premises liability” cases, are deceptively easy/straightforward. Some may believe that if a person slips and falls on a foreign substance (e.g., water), the owner of the property is automatically liable. Not so.
In Parietti v. Wal-Mart Stores, Inc., 2016 NY Slip Op 04923 (N.Y. App. Div. 2d Dept. June 22, 2016), the lower court denied defendants’ motion for summary judgment. There, plaintiff alleged that she “was injured when she slipped and fell on a wet spot on the floor near an ice machine inside the front of a store owned and operated by” Wal-Mart entities.
The appellate court reversed that decision – meaning plaintiff loses. From the decision/order:
In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.
Here, Wal-Mart established, prima facie, that it did not have actual notice of the wet condition of the floor. Wal-Mart submitted evidence in support of its motion which demonstrated that it was not advised of the wet condition on the floor and it did not receive any written or oral complaints by customers or employees concerning water on the floor or a leak in the ice machine prior to the accident. Wal-Mart also established, prima facie, that it did not have constructive notice of the wet condition of the floor. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it. To establish, prima facie, a lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. Mere reference to general cleaning practices . . . is insufficient to establish a lack of constructive notice” in the absence of evidence regarding specific cleaning or inspection of the area in question.
While the evidence submitted in support of the motion demonstrated that water may have been present on the floor where the injured plaintiff fell, Wal–Mart established that the alleged wet condition did not exist for a sufficient length of time prior to the accident such that its employees were able to discover and remedy it. Employee affidavits and video surveillance recordings submitted by Wal–Mart demonstrated that its employees, as per protocol, monitored the conditions at the front entrance of the store on the date of the accident and walked back and forth in the area where the injured plaintiff fell only minutes before her accident. None of the employees at the front of the store saw any water on the floor prior to the injured plaintiff’s accident. Even the injured plaintiff testified at her deposition that she did not see the alleged wet condition a few minutes prior to her accident. Moreover, the evidence does not otherwise indicate that the alleged wet condition was visible and apparent for a sufficient length of time that Wal–Mart had constructive notice of its existence prior to the accident. (Emphasis added.)